United States District Court, W.D. Oklahoma
MILES-LaGRANGE UNITED STATES DISTRICT JUDGE
the Court is plaintiffs' Motion to Remand, filed
September 22, 2017. On October 13, 2017, defendants VFS U.S.
LLC and Volvo Financial Services (“VFS”) filed
their response, and on October 20, 2017, plaintiffs filed
their reply. Based upon the parties' submissions, the
Court makes its determination.
30, 2017, plaintiffs filed the instant action in the District
Court of Oklahoma County, State of Oklahoma. On July 25,
2017, plaintiffs filed their First Amended Petition. On
August 23, 2017, VFS removed this action to this Court on the
basis of diversity jurisdiction under 28 U.S.C. § 1332.
Plaintiffs now move this Court to remand this action to state
court pursuant to 28 U.S.C. § 1447.
assert that VFS has failed to meet its burden to prove
diversity jurisdiction. Specifically, plaintiffs contend that
defendant Debra R. Haston is not a diverse party, as both
plaintiffs and Ms. Haston are citizens of Oklahoma. VFS
asserts that plaintiffs' motion to remand fails under the
express terms of the forum defendant rule, as set forth in 28
U.S.C. § 1441(b)(2). VFS further asserts that Ms. Haston
was fraudulently joined in an effort to prevent removal.
forum defendant rule provides:
A civil action otherwise removable solely on the
basis of the jurisdiction under section 1332(a) of this title
may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in
which such action is brought.
28 U.S.C. § 1441(b)(2) (emphasis added). Thus, an action
must be otherwise removable prior to any application of the
forum defendant rule. The Court, therefore, will first
determine whether this action was otherwise removable -
whether this Court has diversity jurisdiction.
statutes are strictly construed and all doubts about the
correctness of removal are resolved in favor of remand.
Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333
(10th Cir. 1982). When a non-diverse party has been joined as
a defendant, then in the absence of a federal question, the
removing defendant may avoid remand only by demonstrating
fraudulent joinder. Batoff v. State Farm Ins. Co.,
977 F.2d 848, 851 (3d Cir. 1992). The party asserting
fraudulent joinder carries a heavy burden in making this
showing. Batoff, 977 F.2d at 851; Montano v.
Allstate Indem., No. 99-2225, 2000 WL 525592, at *1
(10th Cir. April 14, 2000).
is fraudulent where there is no reasonable basis in fact or
colorable ground supporting the claim against the joined
defendant, or no real intention in good faith to prosecute
the action against the defendants or seek a joint
judgment.” Batoff, 977 F.2d at 851 (internal
quotations and citations omitted). If there is even a
possibility that a state court would find the complaint
states a cause of action against the non-diverse defendant,
the federal court must find joinder was proper and remand the
case to state court. Batoff, 977 F.2d at 851;
Montano, 2000 WL 525592, at *1. In determining
fraudulent joinder claims, the court must resolve all
disputed questions of fact and any uncertainties as to the
current state of controlling substantive law in favor of the
non-removing party. Batoff, 977 F.2d at 852;
Montano, 2000 WL 525592, at *1.
instant action, plaintiffs allege a claim and seek damages
against Ms. Haston for falsely notarizing or creating
plaintiffs' signatures and creating liability for
plaintiffs. See First Amended Petition at ¶ 9
and prayer. Under Oklahoma law,
[a] notary has the duty of determining “either from
personal knowledge or from satisfactory evidence, that the
person appearing before the officer and making the
acknowledgment is the person whose true signature is on the
instrument.” 49 O.S.1991 § 113. Failure to perform
that duty gives rise to a cause of action in tort. State
Natl Bank v. Mee, 136 P. 758, 39 Okla. 775 (1913).
Szczepka v. Weaver, 942 P.2d 247, 249
reviewed plaintiffs' First Amended Petition, the Court
finds that an Oklahoma court would find that plaintiffs have
stated a claim against Ms. Haston. Further, the Court finds
that VFS has not shown that plaintiffs have no real intention
in good faith to prosecute their claim against Ms. Haston.
Ms. Haston has now been served and has filed an answer.
Accordingly, the Court finds that Ms. Haston is not
fraudulently joined and that this Court, therefore, does not
have diversity jurisdiction in this case and this action
should be remanded to the state court.
reasons set forth above, the Court GRANTS plaintiffs'
Motion to Remand [docket no. 13] and REMANDS this case to the